Citation Nr: 0923642
Decision Date: 06/23/09 Archive Date: 07/01/09
DOCKET NO. 03-32 231A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to a schedular rating in excess of 30 percent
for a right knee disability prior to May 12, 2006.
2. Entitlement to a schedular rating in excess of 60 percent
for residuals of a right total knee arthroplasty (TKA) from
July 1, 2007.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Sorisio, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from
September 1966 to August 1970. These matters are before the
Board of Veterans' Appeals (Board) on appeal from a June 2002
rating decision of the Los Angeles, California Department of
Veterans Affairs (VA) Regional Office (RO) that increased the
rating of the right knee disability to 30 percent, effective
March 15, 2001. The case was before the Board in May 2006
when it was remanded for further development. A January 2008
rating decision indicated the Veteran had been granted a
temporary total rating under 38 C.F.R. § 4.30 and § 4.71a,
Diagnostic Code (Code) 5055 from May 12, 2006 to July 1,
2007, and a 60 percent rating, effective July 1, 2007 for the
right knee disability. The Veteran has not expressed
disagreement with the effective dates assigned for the award
of a temporary total rating. Hence, as that rating is the
maximum schedular rating available, that period is not for
consideration by the Board in this appeal and the issues have
been characterized accordingly.
The matter of entitlement to an extraschedular rating for a
right knee disability is being REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify the appellant if any action on his part is required.
FINDINGS OF FACT
1. Prior to May 12, 2006, even with consideration of DeLuca
criteria, limitation of extension of the right knee was not
worse than at 20 degrees and flexion was not limited to 45
degrees; no more than moderate instability has been shown;
and ankylosis of the knee has not been shown.
2. From July 1, 2007 the Veteran's right TKA residuals have
been manifested by severe weakness and pain, but do not more
closely resemble that of an amputation of a lower extremity
at the upper third of the thigh.
CONCLUSIONS OF LAW
1. A 40 percent (but no higher) schedular rating (combined,
based on a formulation of 20 percent for instability under
Code 5257 and 30 percent for limitation of extension under
Code 5261) is warranted for the Veteran's right knee
disability for the period prior to May 12, 2006. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1,
4.3, 4.7, 4.10, 4.14, 4.25 4.40, 4.45, 4.71a, Codes 5003,
5257, 5260, 5261 (2008).
2. A schedular rating in excess of 60 percent for residuals
of a TKA from July 1, 2007 is not warranted. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1,
4.3, 4.7, 4.14, 4.25, 4.68, 4.71a, Codes 5003, 5055, 5257,
5260, 5261 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies
to the instant claim.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant of any information, and any medical or lay evidence,
that is necessary to substantiate the claim. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16
Vet. App. 183 (2002). Proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. § 3.159(b)(1) (including as amended
effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)).
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction decision
on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the
United States Court of Appeals for Veterans Claims (Court)
outlined the notice that is necessary in a claim for an
increased rating. The Court held, in essence, that the
Secretary must give the claimant (1) notice that, to
substantiate a claim, the claimant must provide (or ask the
Secretary to obtain) evidence of a worsening of the condition
and its impact on employment and daily life; (2) notice of
how disability ratings are assigned; (3) general notice of
any diagnostic code criteria for a higher rating that would
not be satisfied by evidence of a noticeable worsening of
symptoms and effect on functioning (such as a specific
measurement or test result); and (4) examples of the types of
medical and lay evidence the Veteran may submit to support an
increased rating claim. Id. at 43-44.
The Veteran did not receive notice that substantially
complied with the requirements of Vazquez-Flores. In
Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the Supreme Court
reversed the case of Sanders v. Nicholson, 487 F.3d 881
(2007), which had held that any error in VCAA notice should
be presumed prejudicial and that VA must always bear the
burden of proving that such an error did not cause harm. In
reversing Sanders, the Supreme Court in essence held that -
except for cases in which VA has failed to inform the
claimant of the information and evidence necessary to
substantiate the claim - the burden of proving harmful error
must rest with the party raising the issue and determinations
on the issue of harmless error should be made on a case-by-
case basis. Shinseki, 129 S.Ct. at 1704-06. The Supreme
Court also stated that it would not decide the lawfulness of
the Court's adopted prejudicial error analysis that some
notice errors have the natural effect of producing prejudice.
Id. at 1706-07; see Mayfield v. Nicholson, 19 Vet. App. 103,
121-22 (2005) (finding that a failure to notify a claimant of
what was necessary to substantiate a claim for benefits had
the "natural effect" of producing prejudice and that in
such a situation, it was VA's burden to demonstrate a lack of
prejudice), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006); see also Overton v. Nicholson, 20 Vet. App. 427 (2006)
(adopting the prejudicial error analysis framework of
Mayfield).
While the notice provided failed to inform the Veteran of
what was required to substantiate his claim and, thus, had
the natural effects of producing prejudice, the Board finds
that this notice error did not affect the essential fairness
of the adjudication because a reasonable person could be
expected to understand from the notice given what was needed
to substantiate his claim. See Mayfield, 19 Vet. App. at
121. April 2002 and May 2006 letters provided the Veteran
notice that he needed to submit evidence showing his service-
connected disability had gotten worse. An October 2003
statement of the case (SOC), and October 2005 and January
2008 supplemental SOCs (SSOC) informed him of the criteria
used to rate a knee disability. The May 2006 letter
explained how disability ratings are assigned (including that
the impact of the disability on employment is considered) and
provided examples of the types of medical and lay evidence
the Veteran could submit to support an increased rating
claim. The October 2003 SOC provided the Veteran notice of
38 C.F.R. § 4.10, which states that "[t]he basis of
disability evaluations is the ability of the body as a whole,
or of the psyche, or of a system or organ of the body to
function under the ordinary conditions of daily life
including employment." Hence, the Board finds that a
reasonable person could be expected to know (from the
information provided by the noted letters, SOC, and SSOCs) of
the elements of Vazquez-Flores listed above. Notably, a
September 2008 supplemental SOC subsequently readjudicated
the claim after further evidence was received.
The Veteran's pertinent treatment records have been secured.
The RO arranged for VA examinations in May 2002, November
2006 and October 2007. The Veteran has not identified any
pertinent evidence that remains outstanding. Thus, VA's duty
to assist is also met. Accordingly, the Board will address
the merits of the claim.
B. Legal Criteria, Factual Background, and Analysis
General Legal Criteria
In general, disability evaluations are assigned by applying a
schedule of ratings that represent, as far as can practically
be determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
When there is a question as to which of two evaluations shall
be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Arthritis established by X-ray findings is rated on the basis
of limitation of motion under the appropriate code(s) for the
specific joint(s) involved. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm or satisfactory evidence of painful motion. 38 C.F.R.
§ 4.71a, Code 5003.
Flexion of the knee to 140 degrees is considered full and
extension to 0 degrees is considered full. See 38 C.F.R.
§ 4.71, Plate II.
Flexion of the leg limited to 60 degrees warrants a
noncompensable rating; flexion limited to 45 degrees warrants
a 10 percent rating; flexion limited to 30 degrees warrants a
20 percent rating; and flexion limited to 15 degrees warrants
a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260.
Extension of the leg limited to 20 degrees warrants a 30
percent rating; extension limited to 30 degrees warrants a 40
percent rating; and extension limited to 45 degrees warrants
a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261.
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior in undertaking the motion. Weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled.
38 C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more or less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity, or atrophy of disuse. 38 C.F.R. § 4.45.
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does
not preclude the assignment of separate evaluations for
separate and distinct symptomatology where none of the
symptomatology justifying an evaluation under one diagnostic
code is duplicative of or overlapping with the symptomatology
justifying an evaluation under another diagnostic code.
Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The VA General Counsel has held that separate ratings (under
Codes 5260 and 5261) may be assigned for limitations of
flexion and extension of the same knee. VAOPGCPREC 9-2004
(Sept. 17, 2004).
The General Counsel has also held that a claimant who has
arthritis and instability of a knee may be rated separately
under Codes 5003 and 5257, while cautioning that any such
separate rating must be based on additional disabling
symptomatology. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC
9-98, (Aug. 14, 1998).
The rating schedule provides for a 10 percent rating for
slight recurrent subluxation or lateral instability, a 20
percent rating for moderate recurrent subluxation or lateral
instability, and a 30 percent rating for severe recurrent
subluxation or lateral instability. 38 C.F.R. § 4.71a, Code
5257.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
The Court has held that "staged" ratings are appropriate
for an increased rating claim where the factual findings show
distinct time periods when the service-connected disability
exhibits symptoms that would warrant different ratings. Hart
v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings were
previously assigned by the RO; the evidence does not show any
further distinct periods of time during the appeal period
when the criteria for the next higher rating were met.
Initially, the Board notes that it has reviewed all of the
evidence in the Veteran's claims file, with an emphasis on
the evidence relevant to this appeal. Although the Board has
an obligation to provide reasons and bases supporting its
decision, there is no need to discuss, in detail, every piece
of evidence of record. Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (holding that VA must review the
entire record, but does not have to discuss each piece of
evidence). Hence, the Board will summarize the relevant
evidence where appropriate and the Board's analysis below
will focus specifically on what the evidence shows, or fails
to show, as to the claim.
Prior to May 12, 2006
The Board notes that prior to May 12, 2006 the Veteran was
granted a 100 percent temporary evaluation (pursuant to the
provisions of 38 C.F.R. § 4.30), effective from October 10,
2003 to December 1, 2003. As the Veteran has already been
granted the maximum schedular rating during this time period
and has not disagreed with the effective dates assigned,
evidence during that period of time will not be considered in
rating the Veteran's right knee disability.
Prior to May 12, 2006, the Veteran's right knee disability
has been rated 30 percent under Code 5261 (for limitation of
extension to 20 degrees).
A June 2001 VA treatment record notes the Veteran had full
range of motion of the right knee, but he reported
experiencing flares of pain to 10 on a 10 scale with best
pain relief of 4.
An October 2001 private treatment record from Dr. D. V. A.
shows the Veteran complained of having knee pain all the
time, but noted having most problems with weight bearing
activity. He had good motion on examination. A cortisone
injection was given.
An April 2002 VA treatment record notes the Veteran's
extension was limited to 10 degrees and flexion was to 170.
On May 2002 VA examination, extension was limited to 20
degrees and flexion was to 90. There was no effusion, but
there was crepitus with range of motion. The examiner
concluded that the right knee disability would certainly
limit his ability to continue employment in a job that
required standing for any prolonged period of time.
A December 2002 VA treatment record shows the Veteran was
unable to work at his post office job since it involved
standing for more than two hours at a time. A subsequent
December 2002 record shows the Veteran had retired from his
job at the post office. At that time, he reported
experiencing constant pain, especially with cold damp
weather.
In his March 2003 notice of disagreement, the Veteran
reported that his job for the last ten years required him to
stand for most of the day. His doctors had recently been
giving him work limitations so he only had to stand for a few
hours a day. He stated he had been under pressure from his
employer and had been forced to take retirement. He has been
told he needs a job that does not require standing. He
reported having pain twenty-four hours a day.
In July 2003, the Veteran reported his knee brace was not
helping and that he was unable to drive for more than 30 to
45 minutes. He believed cortisone injections had made the
pain worse. X-ray results revealed arthritis and a tear of
the posterior horn of the medial meniscus and suggestion of a
tear involving the medial collateral ligament. The physician
noted that when considering the X-ray results, the pain
appeared to be more than one would expect. The plan was to
consider arthroscopy and possible debridement of the torn
meniscus.
In his November 2003 VA Form 9, Substantive Appeal, the
Veteran reported that he had to give up his job at the post
office because he missed too much time from work and had
difficulty standing for as long as his job required him to
stand.
In December 2003, extension was noted to be to 0 degrees
while flexion was to 100. The Veteran reported having
persistent pain in the right knee, averaging from 7 to 9 on a
10 pain scale; the pain occasionally radiated into the right
upper thigh. He reported the pain was worse with prolonged
weight bearing, walking, and cold weather. The partial
meniscectomy partially relieved his pain. Mild knee swelling
was noted on exam.
A March 2004 private treatment record shows the Veteran
reported having pain primarily with weight bearing
activities; his knee pain had been giving him significant
problems since a recent right knee arthroscopy. He was given
a prescription for Ultram to treat the pain.
September 2004 and August 2005 VA treatment records note
extension to 0 and flexion to 120 degrees. X-rays revealed
mild to moderate narrowing and sclerosis of the medial and
patellofemoral joint compartments with spurring of the tibial
spines. There was no evidence of fracture or malalignment.
It was noted he would need a TKA in the future. In July
2005, the Veteran was wearing an unloading brace, but he was
still experiencing pain. Range of motion was full. He was
given a cortisone injection.
In an October 2005 statement, the Veteran reported that while
he could fully extend his leg to 0 degrees, he could not
maintain that extension because it became painful and quickly
dropped from pain and fatigue. He was unable to stand for
more than a few minutes and had lost his job because of the
requirement of standing and twisting. He could only walk
about 50 feet and sitting caused pain.
Even when considering DeLuca criteria of functional
impairment, particularly the Veteran's complaints of pain and
fatigue, especially with weight bearing, and viewed in a
light most favorable to the Veteran, the above described
evidence does not show that extension was limited to 30
degrees prior to May 12, 2006. Specifically, extension was
limited to 20 degrees only one time; otherwise, it has been
limited to no more than 10 degrees and the Veteran is
generally able to fully extend his right knee. Hence, a
higher 40 percent rating under Code 5261 is not warranted.
Additionally, during this time period flexion was at most
shown to be limited to 90 degrees. Even when considering
DeLuca factors of pain and weakness, this evidence does not
show flexion limited to a compensable 45 degrees prior to May
12, 2006. Thus, the Veteran is not entitled to a separate
compensable rating for limitation of flexion under Code 5260.
VAOPGCPREC 9-2004.
The record shows the Veteran had moderate instability prior
to May 12, 2006; hence, he is entitled to a separate 20
percent rating under Code 5257; however, the evidence does
not show findings that would more nearly approximate severe
subluxation or instability for an even higher 30 percent
separate rating.
A June 2001 VA treatment record reflects the Veteran reported
that his knee had given out a few times in the past two
months; McMurray testing was positive; there was no valgus or
varus joint laxity; and anterior and posterior cruciate
ligaments were intact to drawer tests.
A June 2001 private treatment record from Dr. K. reveals
positive McMurray and valgus stress test results; drawer
signs were negative.
A July 2001 private treatment record from Dr. D. V. A. shows
slight varus strain, no effusion, significant medial
compartment tenderness with palpable spurs, and a 1+ Lachman.
The Veteran reported using a cane intermittently and said
that the right knee seldom gave way with climbing and did not
swell. In October 2001, there was point tenderness to
palpation over the anteromedial joint line without effusion.
The limb was noted to be stable.
An April 2002 VA treatment record reveals negative drawer
signs and McMurray testing.
On May 2002 VA examination, the Veteran reported using a cane
for ambulation and had worn a brace for several years.
Testing revealed the right knee opened medially with valgus
stress and was stable to varus stress; McMurray testing was
painful, but there was no appreciable pop or click; and
Lachman and drawer signs were negative. He had medial joint
line tenderness. March 2002 MRI results were noted to reveal
a tear of the posterior horn of the medial meniscus and a
possible tear of the medial collateral ligament.
A March 2004 private treatment record notes the right knee
was stable to valgus and varus stress; there was no ligament
laxity. The knee was tender to palpation over the
anteromedial joint line; there was no effusion.
September 2004 and August 2005 VA treatment records reveal
the knee was stable to varus and valgus stress; Lachman's and
drawer signs were negative; and McMurray's testing was
positive. There was medial joint line tenderness, no
swelling, and mild tenderness with patellar compression. The
Veteran denied locking or giving out of the knee.
A July 2005 VA treatment record notes mild medial cruciate
ligament laxity; the lateral, anterior, and posterior
cruciate ligaments were intact; and McMurray's testing was
negative.
In April 2006, McMurray's testing was positive to pain along
the medial joint line, while varus/valgus stress testing and
drawer signs were stable.
This objective evidence most nearly approximates moderate
instability of the right knee (with varying findings of
instability and stability on valgus and varus strain testing,
McMurray's testing, and Lachman testing). As these test
results often revealed findings of stability and the Veteran
has only noted that his knee has given way a few times prior
to May 12, 2006, the objective evidence does not more nearly
approximate a finding of severe recurrent subluxation or
lateral instability. Hence, a separate 20 percent rating
(but no higher) is warranted under Code 5257 prior to May 12,
2006.
When the rating for extension of the right knee is combined
with the rating for instability, the resulting combined
rating for the right knee disability prior to May 12, 2006 is
40 percent. 38 C.F.R. § 4.25.
For a higher rating (under other potentially applicable
diagnostic codes) one must look to Code 5256 (for ankylosis
of the knee). The right knee has never been described as
ankylosed. Accordingly, that Code is not for consideration.
In light of the foregoing, a combined schedular rating of 40
percent is warranted for the Veteran's service-connected
right knee disability. A preponderance of the evidence is
against the claim for a schedular rating in excess of 40
percent prior to May 12, 2006 and the benefit of the doubt
rule does not apply.
From July 1, 2007
From July 1, 2007 the Veteran's right knee disability has
been rated as 60 percent disabling for residuals of a TKA the
Veteran had on May 12, 2006. Residuals of a TKA are rated
under 38 C.F.R. § 4.71a, Code 5055, which provides that
replacement of the knee with a prosthesis warrants a 100
percent rating for a one-year period following implantation
of the prosthesis. Following the one year period, a maximum
60 percent rating is warranted for chronic residuals
consisting of severe painful motion or weakness in the
affected extremity. As noted, the RO already assigned a 100
percent rating for the Veteran's right knee disability under
Code 5055 from May 12, 2006 to July 1, 2007, so the Veteran
cannot receive an increased rating for his right knee
disability under Code 5055 during that time.
The Veteran's residuals of a right TKA have been granted a 60
percent rating from July 1, 2007 based on painful motion,
weakness, and lack of endurance. As 60 percent rating is the
maximum possible single schedular rating under Codes 5003 and
5256-5263, rating under any one of those Codes would not
afford the Veteran a higher evaluation from July 1, 2007. In
determining whether the Veteran could be entitled to a higher
combined rating under these criteria, the Board must consider
the amputation rule, which states that the combined rating
for disabilities of an extremity shall not exceed the rating
for amputation of the extremity at the elective level, were
amputation to be performed. 38 C.F.R. § 4.68. The rating
schedule establishes that, with regards to a lower extremity,
an amputation at the middle or lower third of the thigh is
assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, Code
5162. Amputation of a leg with defective stump and thigh
amputation recommended, or where not improvable by a
prosthesis controlled by natural knee action may also be
assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, Codes
5163, 5164. In order to have the 80 percent disability
rating available under Code 5161, the Veteran's disability
would have to be comparable to amputation of the thigh at the
upper third, one-third of the distance from perineum to knee
joint measured from the perineum. 38 C.F.R. § 4.71a, Code
5161. In this case, a preponderance of the evidence is
against a finding that the Veteran's right knee disability is
comparable to amputation at the upper third of the thigh.
Based on the affected body parts, it is at most comparable to
amputation of the lower third of the thigh, which only
warrants a 60 percent rating. Thus, as the provisions of
38 C.F.R. § 4.68 limit the combined rating for the Veteran's
residuals of a right knee disability to 60 percent, the
currently assigned 60 percent disability is the maximum
schedular rating that can be assigned. Therefore, as a
matter of law, a schedular rating in excess of 60 percent is
not warranted for residuals of a right TKA from July 1, 2007.
See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
A 40 percent (but no higher) combined schedular rating is
granted for the Veteran's right knee disability for the
period prior to May 12, 2006, subject to the regulations
governing the payment of monetary awards.
A schedular rating in excess of 60 percent for residuals of a
right TKA from July 1, 2007 is denied.
REMAND
An extraschedular disability rating is warranted based upon a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards. 38 C.F.R. § 3.321(b)(1);
see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court
articulated a three-step inquiry for determining whether a
Veteran is entitled to an extraschedular rating. First, the
Board must determine whether the evidence presents such an
exceptional disability picture that the available schedular
evaluations for that service-connected disability are
inadequate. Second, if the schedular evaluation is found
inadequate because it does not contemplate the claimant's
level of disability and symptomatology, the Board must
determine whether the claimant's disability picture exhibits
other related factors such as those provided by the
regulation as "governing norms." Third, if the rating
schedule is inadequate to evaluate a Veteran's disability
picture and that picture has attendant thereto related
factors such as marked interference with employment or
frequent periods of hospitalization, then the case must be
referred to the Under Secretary for Benefits or the Director
of the Compensation and Pension Service to determine whether
the Veteran's disability picture requires the assignment of
an extraschedular rating.
Here, the evidence shows the Veteran was employed by the U.S.
postal service. As previously noted, on May 2002 VA
examination, the examiner opined that the Veteran's right
knee disability would limit his ability to continue
employment in a job that required standing for a prolonged
period of time. A February 2006 VA vocational rehabilitation
counseling narrative report indicates his job duties at the
post office had included bending, stooping, prolonged
walking, standing, kneeling, lifting, and performing
repetitive lifting or carrying of things. The Veteran has
reported that he retired early from his job because of
chronic pain and because his employer put him under pressure
to retire particularly because of work limitations resulting
from his right knee disability. VA determined that because
of the Veteran's service-connected (which also includes a
back disability) and nonservice-connected disabilities, he
was not a candidate to perform a 20 or 40 hour work week and
concluded that he was not suitable for vocational
rehabilitation. While this evidence reflects that the
Veteran has other service-connected and nonservice-connected
disabilities that affect his employment, it also shows that
his right knee disability has caused him marked interference
with employment and presents such an exceptional disability
picture that consideration must be made as to whether the
Veteran is entitled to an extraschedular rating for his right
knee disability. The Board is precluded from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance. Rather, the proper course is to refer the
matter to the Director of Compensation and Pension Service.
The Board notes that the January 2008 rating decision
indicates that a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU)
rating has been denied. If a rating decision was issued on
that matter, it has not been associated with the claims file.
Hence, it is unclear whether the Veteran has received proper
notice of the decision and of his appellate rights and any
action necessary to ensure he has received proper notice
should be completed on remand.
Accordingly, the case is REMANDED for the following:
1. The RO should complete any necessary
development on the issue of entitlement
to assignment of an extraschedular
rating for the right knee disability.
The RO should also associate with the
claims file any previously issued
rating decisions on the issue of TDIU
and, if he was not previously notified,
notify the Veteran of those decisions.
2. The RO should then refer the case to
the Director of Compensation and
Pension for a determination as to
whether the Veteran is entitled to
assignment of an extraschedular rating
for right knee disability in accordance
with the provisions of 38 C.F.R.
§ 3.321(b). The RO should include a
full statement of all factors having a
bearing on the issue.
3. The RO should then re-adjudicate the
claim of entitlement to an
extraschedular evaluation for a right
knee disability. If it remains denied,
the RO should issue an appropriate SSOC
and give the Veteran and his
representative the opportunity to
respond. The case should then be
returned to the Board, if in order, for
further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be
afforded expeditious treatment. The law requires that all
claims that are remanded by the Board for additional
development or other appropriate action must be handled in an
expeditious manner.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs